Citation Nr: 9828622
Decision Date: 09/24/98 Archive Date: 10/01/98
DOCKET NO. 95-42 145 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for hypertension, to
include hypertensive vascular disease.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
ATTORNEY FOR THE BOARD
H. Roberts, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1955 to July
1959.
This appeal arises before the Board of Veterans’ Appeals
(Board) from a November 1994 rating decision of the
Montgomery, Alabama, Regional Office (RO) of the Department
of Veterans Affairs (VA), which denied entitlement to service
connection for hypertension.
This claim was previously before the Board and was remanded
in March 1998 and July 1998, so that the veteran could be
scheduled for a personal hearing. The veteran has withdrawn
his request for a hearing, and this claim is again before the
Board.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that hypertension, to include
hypertensive vascular disease, was incurred in or aggravated
by service, or manifested to a compensable degree within one
year following separation from service, and that service
connection therefor is warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that his claim of
entitlement to service connection for hypertension, to
include hypertensive vascular disease, is well grounded.
FINDINGS OF FACT
1. There is no competent evidence which shows that the
veteran had hypertension or hypertensive vascular disease
while in service, or that either condition manifested to a
compensable degree within one year following the veteran’s
separation from service.
2. There is no competent evidence which shows that any
current hypertension or hypertensive vascular disease was
incurred in or aggravated by service, manifested to a
compensable degree within one year following the veteran’s
separation from service, or is etiologically related to the
veteran’s service or to the split murmur noted in service.
CONCLUSION OF LAW
The veteran’s claim of entitlement to service connection for
hypertension, to include hypertensive vascular disease, is
not well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991);
38 C.F.R. §§ 3.303, 3.304 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The law provides that “a person who submits a claim for
benefits under a law administered by the Secretary shall have
the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded.” 38 U.S.C.A. § 5107(a) (West 1991). In
order to establish a “well grounded” claim for service
connection for a particular disability, the veteran needs to
provide evidence relevant to the requirements for service
connection and of
sufficient weight to make the claim plausible or meritorious
on its own and capable of substantiation. Franko v. Brown, 4
Vet.App. 502, 505 (1993); Tirpak v. Derwinski, 2
Vet.App. 609, 610-611 (1992); Murphy v. Derwinski, 1
Vet.App. 78, 81 (1990).
The three elements of a “well grounded” claim are: (1)
evidence of a current disability as provided by medical
diagnosis; (2) evidence of incurrence or aggravation of a
disease or injury in service as provided by either lay or
medical evidence, as the situation dictates; and, (3) a
nexus, or link, between the inservice disease or injury and
the current disability as provided by competent medical
evidence. Caluza v. Brown, 7 Vet.App. 498, 506 (1995); see
also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303
(1998). Where a claim involves issues of medical fact, such
as medical causation or medical diagnoses, competent medical
evidence is required. Grottveit v. Brown, 5 Vet.App. 91, 92-
93 (1993).
In this case, the determinative issues presented by the claim
are (1) whether the veteran had hypertension or hypertensive
vascular disease during service, or whether either condition
manifested to a compensable degree within one year following
the veteran’s separation from service; (2) whether he
currently has hypertension or hypertensive vascular disease;
and if so, (3) whether his hypertension or hypertensive
vascular disease is etiologically related to his service, to
any disease or injury incurred in or aggravated by service,
or to the split murmur noted on his service separation
examination. The Board concludes that medical evidence is
needed to lend plausible support for the issues presented by
this case because they involve questions of medical fact
requiring medical knowledge or training for their resolution.
Caluza v. Brown, 7 Vet.App. 498, 506 (1995); see also Layno
v. Brown, 6 Vet.App. 465, 470 (1994); Espiritu v. Derwinski,
2 Vet.App. 492, 494-95 (1992).
Service connection may be established for a current
disability which has not been clearly shown in service where
there is a current disability and a relationship or
connection between that disability and a disease contracted
or an injury sustained
during service is shown. 38 U.S.C.A. § 1110 (West 1991);
38 C.F.R. § 3.303 (1998); Cuevas v. Principi, 3 Vet.App. 542,
548 (1992); Rabideau v. Derwinski, 2 Vet.App. 141, 143
(1992). Service connection may also be established for a
chronic disease manifested to a compensable degree within a
presumptive period following separation from service.
38 C.F.R. §§ 3.307, 3.309 (1998). Cardiovascular-renal
disease, including hypertension, is a chronic disease with a
presumptive period of one year. 38 C.F.R. §§ 3.307, 3.309
(1998).
A review of the veteran’s service medical records fails to
reveal any complaints, treatment, or diagnosis of
hypertension or hypertensive vascular disease while on active
duty. The Board notes that the veteran’s June 1959
separation examination found his blood pressure to be 136/80,
and did not note hypertension or hypertensive vascular
disease. That examination did note a split murmur.
There is no medical evidence of record dated within one year
of the veteran’s July 1959 separation from service;
therefore, the Board finds that there is no evidence which
shows that hypertension or hypertensive vascular disease
manifested to a compensable degree within one year following
the veteran’s separation from service.
A June 1988 private medical report notes that the veteran had
been followed for a thoracic aortic aneurysm since 1984.
That reference to a disability in 1984, approximately 25
years following the veteran’s separation from service, is the
earliest competent medical evidence of record which shows any
cardiovascular disability.
As there is no record of diagnosis, treatment, or complaint
of hypertension or hypertensive heart disease in service; no
competent medical evidence showing that hypertension or
hypertensive vascular disease manifested to a compensable
degree within one year following the veteran’s separation
from service; and no competent medical evidence showing that
any current hypertension or hypertensive heart disease is
etiologically related to the veteran’s service or to his
inservice diagnosis
of a murmur, the veteran’s claim fails to show the required
elements of a well grounded claim. Caluza v. Brown, 7
Vet.App. 498, 506 (1995).
The Board has thoroughly reviewed the claims file, but finds
no evidence of a plausible claim. Since the veteran has not
met his burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded, it must be denied.
The veteran has alleged that hypertension and hypertensive
vascular disease began in service, and were related to the
split murmur noted on his service separation examination.
The Board notes that a claimant would not meet the burden
imposed by § 5107(a) merely by presenting lay testimony
because lay persons are not competent to offer medical
opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992).
Consequently, lay assertions of medical causation cannot
constitute evidence to render a claim well grounded under
§ 5107(a); if no cognizable evidence is submitted to support
a claim, the claim cannot be well grounded. Tirpak v.
Derwinski, 2 Vet.App. at 611 (1992). The medical evidence of
record does not show any evidence that either hypertension or
hypertensive vascular disease was incurred in or aggravated
by service, manifested to a compensable degree within one
year following separation from service, or is etiologically
related to service or to a split murmur noted in service.
Where a veteran has not met the burden of presenting evidence
of a well grounded claim, VA has no duty to assist him any
further in developing facts pertinent to his claim, including
any further duty to provide him with a medical examination.
38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1998);
Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992) (where the
claim was not well grounded, VA was under no duty to provide
the veteran with an examination). However, where a claim is
not well grounded, it is incomplete, and depending on the
particular facts of the case, VA may be obligated under
38 U.S.C.A. § 5103(a) to advise the claimant of the evidence
needed to complete his application, where the veteran has
reported other known or existing evidence. Robinette v.
Brown, 8 Vet.App. 69, 77 (1995); Epps v. Brown, 9
Vet.App. 341 (1996). In this case,
regardless of whether the obligation attached, VA has
complied with this obligation in the August 1995 statement of
the case, the August 1996 supplemental statement of the case,
the July 1997 supplemental statement of the case, the October
1997 supplemental statement of the case, and in the above
discussion.
Although the RO did not specifically state that it denied the
veteran’s claim on the basis that it was not well grounded,
the Board concludes that this was not prejudicial to the
veteran. See Edenfield v. Brown, 8 Vet.App 384 (1995) (en
banc) (where a Board decision disallows a claim on the merits
and the Court finds the claim to be not well grounded, the
appropriate remedy is to affirm the Board’s decision on the
basis of nonprejudicial error). The Board, therefore,
concludes that denying the appeal of the veteran’s claim
because the claim is not well grounded is not prejudicial to
the veteran. See Bernard v. Brown, 4 Vet.App. 384 (1993).
ORDER
Because it is not well grounded, the veteran’s claim of
entitlement to service connection for hypertension, to
include hypertensive vascular disease, is denied.
M. S. SIEGEL
Acting Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the
(CONTINUED ON NEXT PAGE)
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402,
102 Stat. 4105, 4122 (1988). The date which appears on the
face of this decision constitutes the date of mailing and the
copy of this decision which you have received is your notice
of the action taken on your appeal by the Board of Veterans'
Appeals.
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